Madhya Pradesh High Court
Komal Chand Gupta vs Must. Phulli on 26 October, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 26 th OF OCTOBER, 2023
SECOND APPEAL No. 2004 of 2023
BETWEEN:-
1. KOMAL CHAND GUPTA S/O SHRI MANIKLAL
GUPTA, AGED ABOUT 44 YEARS, OCCUPATION:
AGRICULTURIST SABJI MANDI, SIDHI, TEHSIL
GOPAD BANAS (MADHYA PRADESH)
2. NANAKRAM SONI S/O SHRI HEERALAL SONI,
AGED ABOUT 48 YEARS, OCCUPATION: BUSINESS
R/O T.C.P.C. KOTHA, SIDHI, TEHSIL GOPAD BANAS
DISTRICT SIDHI (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHOK KUMAR JAIN - ADVOCATE)
AND
1. MUST. PHULLI D/O SHRI VANSHROOP SAHU,
AGED ABOUT 80 YEARS, OCCUPATION:
HOUSEWIFE VILLAGE AMHA, SIDHI WARD NO. 23,
TEHSIL GOPAD BANAS (MADHYA PRADESH)
2. HUBBLAL SAHU S/O SHRI DHANPATI SHAU, AGED
ABOUT 85 YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE AMHA SIDHI, WARD NO. 23, TEHSIL
GOPAD BANAS, DISTRICT SIDHI (MADHYA
PRADESH)
3. NEHTI W/O SHRI SUKHLAL SAHU, AGED ABOUT 75
YEARS, VILLAGE AMHA, TEHSIL GOPAD BANAS,
DISTRICT SIDHI (MADHYA PRADESH)
4. LAKHANLAL S/O SHRI SUKHLAL SAHU, AGED
ABOUT 37 YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE AMHA, TEHSIL GOPAD BANAS,
DISTRICT SIDHI (MADHYA PRADESH)
5. PARMESHWAR SAHU (DEAD) THROUGH ITS
LEGAL HEARS
5A. BAIJNATH SAHU S/O LATE PARMESHWAR SAHU,
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 10/27/2023
10:35:01 AM
2
AGED ABOUT 65 YEARS, R/O VILLAGE AMHA,
TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
5B. SHIVNATH SAHU S/O LATE PARMESHWAR SAHU,
AGED ABOUT 62 YEARS, R/O VILLAGE AMHA,
TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
5C. RAMNATH @ NATHUA SAHU S/O LATE
PARMESHWAR SAHU, AGED ABOUT 58 YEARS,
R/O VILLAGE AMHA, TEHSIL GOPAD BANAS,
DISTRICT SIDHI (MADHYA PRADESH)
5D. VISHWANATH SAHU S/O LATE PARMESHWAR
SAHU, AGED ABOUT 52 YEARS, R/O VILLAGE
AMHA, TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
5E. TIRATHWA D/O LATE PARMESHWAR SAHU, AGED
ABOUT 70 YEARS, R/O VILLAGE PADRA UNDER
GOPALDAS BANDHA MEDE, TEHSIL GOPAD
BANAS, DISTRICT SIDHI (MADHYA PRADESH)
5F. RANI D/O LATE PARMESHWAR SAHU, AGED
ABOUT 65 YEARS, VILLAGE DANDI (PATEHRA),
TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
6. VANSHWATI SAHU S/O SHRI SHIVCHARAN SAHU,
AGED ABOUT 80 YEARS, R / O VILLAGE KUBRI
(BADORA), TEHSIL GOPAD BANAS, DISTRICT
SIDHI (MADHYA PRADESH)
7. TERSI (DEAD) THROUGH ITS LEGAL
REPRESENTATIVES
7.A BHOLA S/O BADRI SAHU, AGED ABOUT 60 YEARS,
R /O VILLAGE KUBRI (BADORA), TEHSIL GOPAD
BANAS, DISTRICT SIDHI (MADHYA PRADESH)
7B. MUNNA S/O BADRI SAHU, AGED ABOUT 55 YEARS,
R/O VILLAGE KUBRI (BADORA), TEHSIL GOPAD
BANAS, DISTRICT SIDHI (MADHYA PRADESH)
8. MUNIYA D/O GAJROOP SAHU, AGED ABOUT 73
YEAR S , R/O VILLAGE AMHA, TEHSIL GOPAD
BANAS, DISTRICT SIDHI (MADHYA PRADESH)
9. SUGAUWA D/O GAJROOP SAHU, AGED ABOUT 63
YEAR S , R/O VILLAGE AMHA, TEHSIL GOPAD
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 10/27/2023
10:35:01 AM
3
BANAS, DISTRICT SIDHI (MADHYA PRADESH)
10. SUGIYA D/O GAJROOP SAHU, AGED ABOUT 53
YEAR S , R/O VILLAGE AMHA, TEHSIL GOPAD
BANAS, DISTRICT SIDHI (MADHYA PRADESH)
11. MUST. SANTUWA (DEAD) W/O RAMESHWAR SAHU
R/O VILLAGE AMHA, WARD NO. 23, TEHSIL
GOPAD BANAS, DISTRICT SIDHI (MADHYA
PRADESH)
12. CHABILAL S/O RAMESHWAR SAHU, AGED ABOUT
59 YEARS, R/O VILLAGE AMHA, WARD NO. 23,
TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
13. SAMAYLAL S/O RAMESHWAR SAHU, AGED
ABOUT 52 YEARS, R/O VILLAGE AMHA, WARD NO.
23, TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
14. SURESH S/O RAMESHWAR SAHU, AGED ABOUT 46
YEAR S , R/O VILLAGE AMHA, WARD NO. 23,
TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
15. NARESH S/O RAMESHWAR SAHU, AGED ABOUT 44
YEAR S , R/O VILLAGE AMHA, WARD NO. 23,
TEHSIL GOPAD BANAS, DISTRICT SIDHI
(MADHYA PRADESH)
16. STATE OF MADHYA PRADESH THROUGH THE
C O L L E C T O R DISTRICT SIDHI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI RAKESH DWIVEDI - ADVOCATE FOR RESPONDENT 1 MS.
VIBHA PATHK - PANEL LAWYER FOR RESPONDENT 16/STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the appellants/defendants 15-
16 challenging the judgment and decree dated 08.08.2023 passed by 4th District
Judge, Sidhi, District Sidhi in RCA No.89/2023 reversing the judgment and
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 10/27/2023
10:35:01 AM
decree dated 26.04.2023, passed by 2nd Civil Judge Senior Division, Sidhi in
RCSA No.1600287/2015 whereby respondent 1/plaintiff's suit filed for
declaration of title, for declaring the partition order dated 29.10.2011 null and
void passed in respect of land survey nos.347, 348, 349, 351, 352, 361, 362,
363, 365, 379 and 383 (total number 11) total area 2.194 hectare situated in
Village Amha, Tahsil Gopadbanas, as well as for declaring the sale deed dated
29.05.2014 (Ex.D/1) executed by defendant 12- Hubblal in favour of defendants
15 and 16 null and void to the extent of plaintiff's share and for permanent
injunction was dismissed by learned trial Court, which has been decreed by first
appellate Court in respect of 1/5 share of the plaintiff.
2. Learned counsel for the appellants submits that there is no dispute that
the suit lands were owned and possessed by Gajroop, Dhanpati, Banshroop,
Parmeshwar and Banshpati (all sons of Shivcharan) and they all were having 1/5
- 1/5 shares each in the suit lands. He submits that on 29.10.2011 partition was
effected among the aforesaid five persons or their legal representatives before
the Tahsildar by way of document/Pulli (Ex.D/9) and order dated 29.10.2011
(Ex.P/8) in presence of the plaintiff - Fulli who had also signed the Pulli
(Ex.D/9), therefore, she is estopped from challenging the partition whereby she
gave her entire share to Hubblal.
3. Learned counsel for the appellants submits that learned trial Court had
rightly dismissed the suit holding that the plaintiff has failed to prove her title
and possession over the land in question and rightly placed reliance on the
aforesaid documents of partition. Learned counsel further submits that in
absence of claiming relief of possession and partition, the suit is not
maintainable in view of Section 34 of the Specific Relief Act. Resultantly
learned first appellate Court has, by reversing the judgment and decree of trial
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 10/27/2023
10:35:01 AM
Court, erred in decreeing the suit even to the extent of plaintiff's alleged 1/5
share in all the aforesaid 11 survey numbers.
4 . Learned counsel further submits that even if the suit is decreed, the
sale deed executed by defendant 12 in favour of the defendants 15-16 cannot be
treated to be null and void in its entirety. With the aforesaid submissions he
prays for admission of the second appeal.
5. Learned counsel appearing for the respondent 1/plaintiff supports the
impugned judgment and decree passed by learned first appellate Court and
prays for dismissal of the second appeal.
6. Heard learned counsel for the parties and perused the record.
7. In the present case, it is an admitted position that the aforesaid land of
11 survey numbers belonged to Gajroop, Dhanpati, Banshroop, Parmeshwar
and Banshpati. According to case of the defendants, partition was done
amongst the parties by way of documents (Ex.D/9 & Ex.P/8), therefore,
undisputedly the plaintiff who is claiming right in the suit property through her
father Bansroop, was having 1/5 share in the suit property. The document of
Pulli (Ex.D/9) recites that the plaintiff - Fulli had given her entire share to
defendant 12- Hubblal and on that premise nothing was given in the partition to
the plaintiff - Fulli. If the documents of partition (Ex.D/9 & Ex.P/8) are
discarded from the record, then the plaintiff admittedly is having 1/5 share in the
suit property.
8. It is well settled that any relinquishment of share can be done only by
way of registered document and mutation does not confer any title
9. In the present case the defendants 12, 15 & 16 are placing reliance
only on the Pulli (Ex.D/9) to say that the plaintiff has no right in the suit
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 10/27/2023
10:35:01 AM
property, which in any case cannot be considered to be a document of
conferment of rights on the defendant 12 and then on defendants 15 & 16.
10. So far as the question of non seeking of relief of partition and
possession is concerned, the plaintiff is claiming 1/5 share in the suit property
which in absence of alleged partition dated 29.10.2011, would be treated joint
property of the aforesaid five persons, therefore, in my considered opinion
there is no adverse effect on the plaintiff's case, if she has not sought any relief
of partition and possession and for that purpose still she can approach to the
competent revenue authority under Section 178 of M.P Land Revenue Code,
1959, if she desires.
11. From perusal of judgment and decree passed by first appellate Court
it is clear that learned first appellate Court has declared the sale deed dated
29.05.2014 (Ex.D/1) null and void only in respect of the rights of the plaintiff
and nowhere it has been said by first appellate Court that the sale deed is void
in its entirety.
12. In view of the aforesaid discussion, in my considered opinion,
learned first appellate Court has not committed any illegality in decreeing the suit
to the extent of plaintiff's 1/5 share.
13. Resultantly in absence of any substantial question of law, this second
appeal fails and is hereby dismissed in limine under Order 41 Rule 11 CPC.
14. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
SN
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 10/27/2023
10:35:01 AM
